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2020 DIGILAW 239 (KAR)

Mallappa v. Iravva And Others

2020-01-27

ASHOK S.KINAGI

body2020
JUDGMENT Ashok S. Kinagi, J. - The plaintiff aggrieved by the judgment and decree dated 28.10.2019 passed by the Addl. Civil Judge & J.M.F.C., Haveri, in O.S. No. 429/2012 which is confirmed by the judgment and decree dated 02.01.2020 in R.A. No. 27/2019 passed by the Addl. Senior Civil Judge, Haveri, filed this second appeal. 2. The brief facts of the case that the plaintiff filed the suit for permanent injunction against the defendants and their servants to restrain them from interfering and causing obstruction to the peaceful possession and enjoyment of the plaintiff over the suit schedule property comprised in V.P.C. No. 41 consisting a house and backyard situated at Homabaradi village of Haveri taluk. 3. It is the case of the plaintiff that originally the suit property was owned by one Basavanneppa S/o. Rudrappa Chikkanandi died long ago. During his lifetime i.e., 30 years ago, he handed over the suit schedule property to the plaintiff. Accordingly, the plaintiff along with family members occupied the same and his name was entered in VPC extract of concerned village panchayat. The plaintiff along with his family members is in actual possession and enjoyment. The defendants trying to interfere with the peaceful possession and enjoyment of suit schedule property. Hence, the plaintiff constrained to file the suit for perpetual injunction. 4. The defendants entered their appearance and filed written statement denying the contents of the plaint averment. It is contended that mother of the defendants namely Gouravva W/o. Hanumanthappa is the absolute owner of the suit schedule property and earlier VPC extract pertaining to the suit property was standing in her name but her name was deleted in the said VPC extract without giving any notice to her from the concerned panchayat. After the death of the said Gouravva i.e., mother of the defendants, the defendants gave vardi to enter their names but the panchayat officials refused to enter their name in the panchayat records. The defendants being aggrieved by the same, they preferred an appeal before the President Taluk Panchayat in proceedings No. wherein he ordered to enter the names of the defendants. Being aggrieved by the said order, plaintiff preferred an appeal before the President of Zilla Panchayat. The President of Zilla Panchayat did not pass any order of stay. Then the plaintiff challenged the same before this Court in W.P. No. 70896/2012. Being aggrieved by the said order, plaintiff preferred an appeal before the President of Zilla Panchayat. The President of Zilla Panchayat did not pass any order of stay. Then the plaintiff challenged the same before this Court in W.P. No. 70896/2012. This Court disposed of the said writ petition with the observation that the entries will the subject to the result of suit. It is further contended that suit properties original belongs to one Basavanneppa Rudrappa Chikkanandi who died testate leaving behind a registered Will dated 15.12.1976 bequeathing the suit property in favour of Gouravva who is the mother of defendants. Accordingly, after the death of said Basavanneppa, the suit property was mutated in the name of defendants mother. After her death, the said properties were mutated in the names of defendants. Hence, prayed to dismiss the suit of the plaintiff. 5. On the basis of pleadings, the trial Court framed the following issues: 1) Whether the plaintiff proves that he is in possession of the suit schedule property? 2) Whether the plaintiff further proves the alleged interference by the defendants? 3) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? 4) What decree or order? 6. The plaintiff to prove his case examined one Puttappa Chikkanandi who is the GPA holder of plaintiff as PW-1 and got marked 12 documents as Exs. P-1 to P-12. The defendant No. 1 got examined herself as DW-1 and got marked 5 documents as Exs. D-1 to D-5. After considering the evidence of the parties and after appreciating the material on record, the trial Court held that the plaintiff has failed to prove that he is in possession of the suit schedule property and also failed to prove the alleged interference by the defendants. Further held that the plaintiff is not entitled for the relief of permanent injunction and dismissed the suit of the plaintiff. 7. Aggrieved by the said judgment and decree of the trial Court, the plaintiff filed an appeal before the first appellate Court. 8. The first appellate Court framed the following points for consideration: 1) Whether trial court is justified in coming to the conclusion that, plaintiff has failed to prove his lawful possession over the suit property? 2) Whether trial court is right in refusing to grant perpetual injunction to plaintiff? 8. The first appellate Court framed the following points for consideration: 1) Whether trial court is justified in coming to the conclusion that, plaintiff has failed to prove his lawful possession over the suit property? 2) Whether trial court is right in refusing to grant perpetual injunction to plaintiff? 3) Whether impugned judgment and decree of the trial court are legally sustainable? 4) Whether interference of this court is necessary? 5) What order or decree? and held that the trial court is justified in coming to a conclusion that the plaintiff has failed to prove the possession over the suit property and further held that the trial court was justified in refusing to grant perpetual injunction to the plaintiff and held that the judgment and decree passed by the trial court is correct and the same does not call for interference and accordingly, dismissed the appeal filed by the plaintiff. 9. The plaintiff, aggrieved by the judgment and decree passed by the courts below, has filed this appeal. 10. Heard the learned counsel for the appellant and the respondents and perused the impugned judgment and decree. 11. Learned counsel for the appellant submits that the plaintiff is in possession of the suit property based on the resolution passed by the Panchayat in the year 1992 and further submitted that the plaintiff is paying tax in respect of the suit property. That the plaintiff has produced Ex. P-7 to 9 i.e., electricity bills to show that he is in possession of the suit schedule property. Hence, he submits that the courts below committed an error in holding that the plaintiff is not in possession of the suit schedule property. 12. Per contra, learned counsel for the respondents supports the impugned order. 13. It is the specific case of the plaintiff that the suit property originally was owned by one Basavanneppa son of Rudrappa son of Chikkanandi, who handed over the same to the plaintiff over 30 years ago. Accordingly, his name has been entered in the panchayath records. He is residing along with his family members in the suit schedule property and the defendants in the month of August 2012 obstructed his peaceful possession and enjoyment. Hence, he filed a suit. Accordingly, his name has been entered in the panchayath records. He is residing along with his family members in the suit schedule property and the defendants in the month of August 2012 obstructed his peaceful possession and enjoyment. Hence, he filed a suit. On the other hand, the defendants denied that the plaintiff is in possession of the suit property and further that the name of the plaintiff appearing in the panchayat record was deleted by Panchayat authorities and that the plaintiff was not in possession of the suit property as on the date of the institution of the suit. 14. From the perusal of the evidence on record, it is seen that the plaintiff has relied on Exs. P-1 and 2-Assessment extract of VPC No. 41 of Hombaradi village Panchayat. Ex. P-1 is of the year 1998-99 to 2012-13 which is standing in the name of the plaintiff. So far as Ex. P-2 is concerned, it is of the year 1979-80 which is standing in the name of Gouravva, who is mother of defendants. The plaintiff has not explained as to how and on what basis his name has been entered in the panchayat record by deleting the name of the mother of the defendants. Even, the plaintiff has not produced any records before the courts below to show that how he has acquired possession over the suit schedule property. That as per Ex. P-4, name of the plaintiff is entered based on the judgment and decree dated 22.02.1985 passed by the Munsiff and JMC, Haveri. The plaintiff has not produced a copy of the said judgment and decree. Further, the plaintiff has not stated in which proceedings that the judgment and decree has been passed in his favour for effecting the mutation in his name in the VPC extracts; that, the plaintiff has also not produced a copy of the order dated 22.02.1985 before the courts below. The plaintiff has failed to prove the nature and mode of transfer of VPC extract in his name. The mutation which was effected in the name of the plaintiff was based on the judgment and decree dated 22.02.1985. In fact, the said document has not been produced. The plaintiff has failed to prove the nature and mode of transfer of VPC extract in his name. The mutation which was effected in the name of the plaintiff was based on the judgment and decree dated 22.02.1985. In fact, the said document has not been produced. As held by the Honble Apex Court in the case of Dayaram and others v. Dawalatshah and another reported in AIR 1971 Supreme Court 681 has held that 'order of Revenue Officer in mutation proceedings based on untrue piece of evidence has no evidentiary value in civil suit.' In the present case, the mutation effected in the name of the plaintiff is based on untrue piece of evidence. So mutation effected in the name of the plaintiff has no evidentiary value in the civil suit. The defendants have challenged the mutation entries standing in the name of the plaintiff in VPC extract before the President, Taluka Panchayat. The President, taluka panchayat has passed an order dated 22.09.2012 as per Ex. D-5 allowing the appeal filed by the defendants against the infringed resolution passed by the Kurubagonda Mandal Panchayat at Sl. No. 259 dated 21.02.1990 and set aside the aforesaid resolution of effecting the name of the plaintiff in Ex. P-2 and further ordered to enter the names of the defendants in VPC extract in respect of the suit schedule properties. The plaintiff aggrieved by the said order has preferred an appeal before the President of Zilla Panchayat, Haveri. The President of Zilla Panchayat kept the interlocutory application i.e., stay petition pending. The plaintiff preferred Writ Petition No. 70896 of 2012 before this Court challenging non-consideration of stay petition. This Court disposed off the writ petition observing as under: 'The suit proceedings between the parties are pending consideration before the civil court. Needless to observe that the entries in the revenue records are to be brought in conformity with the decree, which a party may obtain at the hands of a competent civil court.' 15. Therefore relying upon VPC extract to pass a decree in a civil suit is not permissible and the entry in the VPC extract cannot be considered as a proof of possession. That the learned counsel for the appellant relied upon Exs. P-7 to 9 i.e., electricity bills. From the perusal of the same it is seen that Ex. Therefore relying upon VPC extract to pass a decree in a civil suit is not permissible and the entry in the VPC extract cannot be considered as a proof of possession. That the learned counsel for the appellant relied upon Exs. P-7 to 9 i.e., electricity bills. From the perusal of the same it is seen that Ex. P-7 to 9 do not mention the VPC number in the receipt and also what is the address of the installation meter and in which property it is existing. The plaintiff has not examined the officer of the electricity department to prove that Exs. P-7 to 9 pertains to the suit house. Further, the plaintiff has not examined any adjacent occupants to prove his possession over the suit schedule property. The plaintiff has failed to prove that he is in possession of the suit schedule property along with his family members. The trial Court after considering the material on record, has rightly held that the plaintiff has failed to prove that he is in possession and enjoyment of the suit schedule property and also failed to prove the alleged interference by the defendants. The appellate court after re-appreciating the entire material on record has confirmed the judgment and decree passed by the trial court. 16. In view of the discussion made above, I do not find any substantial question of law that arises for consideration in this appeal and accordingly, proceed to pass the following order: The appeal is dismissed. In view of dismissal of the appeal, I.A.1 of 2020 does not survive for consideration. Accordingly, the same stands disposed off.